By Emma Westhoff*
According to the traditional Islamic concept of milk kinship, the act of breastfeeding creates a familial relationship between a woman and the child she is nursing. This relationship in turn prohibits any future marriages between the woman's own children and the newly nursed child, who are now considered "milk siblings." In recent decades, expanding possibilities for infant care—including the distribution of donated human milk through hospital milk banks—have raised new questions surrounding the permissibility of the use of donated milk for Muslim babies and the potential for the formation of religiously significant kinship ties that this entails.
Background
In 2016, KK Women and Children's Hospital in Singapore sought the perspective of the Islamic Religious Council of Singapore on its plans to establish a new donor milk bank for use by premature infants in the hospital's care.[1] Human breast milk is considered the gold standard in infant nutrition worldwide, especially for babies who are premature or struggling with other health complications.[2] While a biological mother's own milk is preferred whenever possible, a sufficient supply is not always available. The hospital guidelines outlined the circumstances under which donor milk would be administered and sought the Council's insight as to whether this plan was appropriate for Muslim babies and their families.[3] The use of donor milk was generally advised for babies 34 weeks old and younger and would cease when babies met the appropriate age, weight, and health requirements, or when the biological mother's milk was available.[4] Milk was pasteurized and received from donors who had passed relevant health evaluations.[5] Records of these donors' identities were to be kept for at least 21 years, but classified outside of disclosure for clinical reasons.[6] Milk was distributed by nasal tube to younger babies, at frequent intervals in very small quantities, and distributed orally to older, stronger babies.[7] Parents could request to end donor feeding at any point.[8]
Reasoning
The Fatwa Committee's main consideration is the status of maḥramiyya (kinship or relations that bar marriage) that can result from breastfeeding. They begin by reviewing the opinion of other scholars on the topic. Some opinions, such as those of the Mufti of Sengalor and Majma' Fiqh (International Islamic Fiqh Academy), forbid the use of milk from milk banks outright for Muslim babies.[9] Others, such as the opinion of the Mufti of Federal Territory (Wilayah Persekutuan) Malaysia, allow for it only in emergency situations.[10] The opinions that allow totally for the donation and establishment of breast milk banks are attributed to "several scholars," suggesting the prevalence of this opinion over the others.[11] The Committee lays out three central issues that were studied by the Committee, including (a) the amount and number of feedings using breast milk, (b) the issue of uncertainty (jahāla), and (c) the method of feeding.[12]
Concerning the amount and number of feedings, the Committee finds it significant to note that the bank's operations do not result in a one donor, one baby system of milk distribution. Instead, milk from one donor is given to multiple babies until it is gone, with each baby being likely to receive only 2–3 feeds from the same donor.[13] Babies are thus fed from different donors throughout their time in the hospital, without knowing the amount consumed from each donor. Over a month's stay in the neonatal intensive care unit (NICU), a baby could be expected to consume milk from about twenty different donors.[14]
The issue of uncertainty is ultimately central to the Committee's ruling, as they recognize that the status of doubt as to the identity of the milk donor and the amount fed from each donor can result in a non-establishment of the maḥramiyya relationship.[15] They cite three other scholars—the most extensive citations in the fatwā, and notably taken from scholars representing a variety of schools—to support this application.
The first is from Imām al-Shāfiʿī, who addressed the element of doubt in the context of breastfeeding in his book Al-Umm:
If a man is in doubt whether or not a woman has breastfed him on five occasions, then he is not a maḥram (a person who is barred marriage from the subject) to her. Likewise, if he is confident that breastfeeding has occurred over five times, but the woman doubted if those instances occurred when he was two years old [and below], then maḥramiyya does not occur as well, based on the chosen opinion.[16]
Ibn Qudāma of the Ḥanbalī school likewise addresses the issue:
When there is doubt whether breastfeeding took place, or doubt on the number of breastfeeding occasions – whether the number is sufficient [to establish maḥramiyya] or otherwise – [then] maḥramiyya is not established, because the presumption is that [maḥramiyya] is not established, and a ruling that is certain cannot be replaced by one that is based on doubt, as in the case when one doubts whether [he has] divorced [his wife], or on the number of times [that he has divorced her].[17]
Finally, the Committee cites a fatwā issued in 1983 by the Egyptian Dār al-Iftā', which asserts as long as there is doubt as to the donor's identity, maḥramiyya does not exist between the donor and the baby:
Jurisprudence (fiqh) texts clearly established that marriage is permissible between two children who have consumed the milk. There is no basis to establish maḥramiyya when the woman or the group of women who donated the milk could not be identified, such that the milk cannot be affirmatively attributed to a definite donor or donors. As for the situation in which the milk was frozen, and stored for two or three months so that it remains good to be consumed, or even if it is given to the infants in its original condition, the issue of doubt (jahāla) remains valid. Therefore, there are no barriers to marriage between two children who drink from this supply of milk.[18]
The method of feeding is also significant, as there is debate as to whether all consumption of breast milk can establish maḥramiyya, or whether the act of suckling directly from the breast is required.[19] This calls into question both indirect oral feeding as well as the feeding of very young babies through nasal tubes. Some scholars interpret the concept of "motherhood" [ummahātukum] as referred to in Surah An-Nisāʾ (Qur'ān 4:23) to mean motherhood as a whole, which includes both breastfeeding and the bond and/or love that results from direct latching.[20] Without both of these elements, some scholars argue, no relational bond can be formed.[21]
Conclusion
The Committee ultimately concludes that this is a situation of great difficulty (mashaqqa) that necessitates a solution (hāja) for the babies whose acute and long-term health and development are impacted by their ability to consume human breast milk.[22] They assert that the establishment of milk banks is in line with the objectives of sharī'a (maqāsid sharī'a), which emphasizes the need for the preservation of human life.[23] The Committee puts forth three particular legal canons that illustrate how the principles of Islam are clear on this matter. They are that (1) any harm [must] be eliminated, (2) hardship begets facility, and (3) when the condition becomes tight, then [the law] is widened.[24]
Maḥramiyya between infant and milk donor exists only if they fulfill the conditions set out in fiqh and there is no doubt about the matter.[25] The Committee notes that the conditions set out in fiqh may vary based on the school of jurisprudence being applied, but offers the example of a Damascus ruling requiring five full feedings, that the milk suckled reach the baby's stomach, and that the baby's age not exceed two years.[26] The Committee reviews the major factors in its decision, namely the restrictions placed on knowledge of donor identity, the impossibility of determining the number of feedings and amount of milk received from a single donor, the lack of feeding through direct latching, the uncertainty surrounding the amount of milk required for a premature infant to be fully fed and the very small volume of this amount, and the purpose of the milk banks in preventing serious illness and aiding the development of the digestive system.[27] The final ruling is presented: premature Muslim babies in Singapore can consume milk processed by the milk bank, and consumption of this milk does not result in maḥramiyya.[28]
Notes:
* Emma Westhoff is a second-year JD student at Harvard Law School. She received her bachelors in linguistics from Brigham Young University. She is interested in interfaith work and the intersection of law and religion, particularly as it affects minority religious groups.
[1] Fatwa Committee, Islamic Religious Council of Singapore, "Fatwa Text on Milk Bank," Majlis Ugama Islam Singapura, para. 1, accessed December 5, 2024, https://www.muis.gov.sg/-/media/Files/OOM/Fatwa/Fatwa-Text-on-Milk-Bank-English.pdf.
[2] Ibid., para. 4 (citing American Academy of Pediatrics, WHO and UNICEF).
[3] Ibid., para. 2.
[4] Ibid., para. 4.
[5] Ibid., para. 5.
[6] Ibid., para. 7.
[7] Ibid., para. 9.
[8] Ibid., para. 4.
[9] Ibid., para. 10.
[10] Ibid.
[11] Ibid. See also ibid., n.4.
[12] Ibid., para. 11.
[13] Ibid., para. 12.
[14] Ibid., para. 13.
[15] Ibid., para. 14.
[16] Ibid.
[17] Ibid., para. 15.
[18] Ibid., para. 16.
[19] Ibid., paras. 18–19.
[20] Ibid.
[21] Ibid., para. 19.
[22] Ibid., para. 20.
[23] Ibid., para. 20.
[24] Ibid.
[25] Ibid., para. 21.
[26] Ibid., para. 15.
[27] Ibid., para. 22.
[28] Ibid., para. 23.
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